Symposium: Welcome to Oligarchs United

Posted Thu, April 3rd, 2014 11:17 am by Burt Neuborne

Help. American democracy is trapped in a sealed box built by the Supreme Court. As the Court’s decision in McCutcheon v. Federal Election Commission demonstrates, five Justices are slowly but surely pumping the air out of the box. The box has four walls built by the Justices in Buckley v. Valeo – (1) an insistence that spending money in a political campaign is always the exact legal equivalent of “pure” speech, no matter how high the spending goes; (2) a rejection of the idea that preserving a modicum of political equality justifies placing any limit on campaign spending, even at stratospheric levels; (3) an insistence that “direct” campaign spending has more First Amendment protection than “indirect” campaign contributions; and (4) a refusal to admit that unlimited independent spending poses the same risk of “corruption” or the “appearance of corruption” posed by campaign contributions.

The net result of the four Buckley walls was a strangely configured room where ideologically driven independents were privileged to spend as much campaign money as they wished, while candidates and political parties scrambled to raise contributions in relatively small amounts in order to deter “corruption.” The Buckley Court left some air in the room because the Court’s studiously vague definition of “corruption” or the “appearance of corruption” initially permitted the government to argue that allowing a hugely wealthy donor to exercise “undue influence” over elected officials based solely on campaign contributions not only eviscerated any concept of political equality, but it also resulted in both the reality and appearance of corrupting the very idea of representative government, by eroding the ability of elected officials to exercise genuinely independent judgment. That’s why aggregate limits on campaign contributions were upheld by the Buckley Court, and why aggregate contribution limits were assumed to be constitutional for forty years, until today.

Several Justices then set about trying to pump out that little bit of air, misreading Buckley by insisting that the only form of “corruption” that could justify contribution limits is quid pro quo corruption, already illegal as bribery or extortion. As Justice Breyer’s dissent in McCutcheon demonstrates, they failed for almost forty years, until they were successful in slipping a narrow definition of “corruption” into Citizens Unitedas dictum. In McCutcheon, the Roberts plurality pivots on that dictum to seal up the last air hole. Under the plurality’s governing test (which is governing because the Thomas approach rejects even the risk of quid pro quo corruption as a justification for limiting contributions), prevention of narrowly defined quid pro quo corruption is the sole possible basis for limiting the size of campaign contributions, with independent expenditures continuing to be treated as wholly exempt from regulation because, in the eyes of five Justices, independent expenditures pose no risk of quid pro quo “corruption.” Once the government became trapped in that airless box, it proved impossible to persuade the plurality that aggregate contribution limits play a real role in preventing quid pro quo corruption, as long as the base limit on each individual contribution is adhered to. The argument is a simple one. If the base contribution limit defines the point at which a risk of quid pro quo corruption is present, adhering to that base limit should take care of the corruption risk, no matter how many base contributions are made, rendering the aggregate limits unnecessary. Watching the government twist in that airless room trying to build Rube Goldberg scenarios explaining how a $3.2 million aggregate contribution can seep down to individual candidates or entities in amounts that exceed the base limit would have been funny, if so much weren’t at stake. You knew that five Justices, dead set against the regulations, would reject the government’s scary stories as either unlikely, or subject to other forms of regulation. And that’s just what the McCutcheon plurality does, insisting that the real-world prospect of a single donor cutting a check for millions of dollars to an umbrella entity poses little or no risk that any of the money would find its way to constituent entities in ways that threaten quid pro quo corruption. After all, if you don’t believe that massive independent expenditures on behalf of a candidate pose a risk of electoral corruption, why would you be concerned that even unequal distribution of aggregate contributions poses a risk of quid pro quo corruption of any given recipient? Even on its own terms, the Roberts plurality simply ignores the fact that political decisions are not always, or even usually, the result of atomistic decisions by individual legislators. That was the initial vision of the Founders. All agree that the Founders’ vision did not survive the election of 1800, and that today’s politics take place in the shadow of collective decision-making by political parties, or other less formal political groupings. To the extent the Roberts plurality has a technical flaw, it is the failure to address the risk of quid pro quo corruption in the context of a deal with a group. But I’m afraid that train has left the station.

When the dust from the McCutcheon demolition settles, all that’s left are base contribution limits in a larger campaign finance system where America’s oligarchs can choose between unlimited independent expenditures and unlimited aggregate contributions to buy all the political influence they will ever need. The one good thing you can say about the opinion is that maybe it will re-direct some of the money now being expended as independent expenditures to the major political parties in the form of large aggregate contributions, giving candidates and parties a chance to regain some control of the electoral agenda. In that sense, McCutcheon improves the configuration of Buckley’s airless room, but leaves American democracy trapped at “one dollar, one vote.” There is no ignoring the fact that American democracy is now a wholly owned subsidiary of Oligarchs, Inc.

McCutcheon teaches one important lesson. Campaign finance reform cannot take place in the current Supreme Court’s airless room. The McCutcheon plurality’s cavalier approach to stare decisis, and the willingness of five Justices in Citizens United to overrule both Austin v. Michigan Chamber of Commerceand McConnell v. Federal Election Commission, means, however, that the airless room is good law only as long as the current Supreme Court configuration remains stable. Justice Breyer’s impassioned dissent points the way to pumping air back into the room by treating corruption not merely as a form of quid pro quo bribery, but as the erosion of the proper operation of democratic institutions. As Justice Breyer notes, representative democracy simply cannot operate properly as long as a small group of very wealthy persons are constitutionally licensed to purchase “undue influence” over the supposedly independent judgment of legislators. Recognizing that fact would not only resurrect aggregate contribution limits, it would be a blueprint for regulating massive independent expenditures.

Perhaps most importantly, McCutcheon illustrates two competing visions of the First Amendment in action. Chief Justice Roberts’s opinion turning American democracy over to the tender mercies of the very rich insists that whether aggregate contribution limits are good or bad for American democracy is not the Supreme Court’s problem. He tears seven words out of the forty-five words that constitute Madison’s First Amendment – “Congress shall make no law abridging . . . speech”; ignores the crucial limiting phrase “the freedom of,” and reads the artificially isolated text fragment as an iron deregulatory command that disables government from regulating campaign financing, even when deregulation results in an appalling vision of government of the oligarchs, by the oligarchs, and for the oligarchs that would make Madison (and Lincoln) weep.

Justice Breyer’s dissent, seeking to retain some limit on the power of the very rich to exercise undue influence over American democracy, views the First Amendment, not as a simplistic deregulatory command, but as an aspirational ideal seeking to advance the Founders’ effort to establish a government of the people, by the people, and for the people for the first time in human history. For Justice Breyer, therefore, the question of what kind of democracy the Supreme Court’s decision will produce is at the center of the First Amendment analysis. For Chief Justice Roberts, it is completely beside the point. I wonder which approach Madison would have chosen.

As a nation, we’ve weathered bad constitutional law before. Once upon a time, the Supreme Court protected slavery. Once upon a time the Supreme Court blocked minimum-wage and maximum-hour legislation. Once upon a time, the Supreme Court endorsed racial segregation, denied equality to women, and jailed people for their thoughts and associations. This, too, shall pass. The real tragedy would be for people to give up on taking our democracy back from the oligarchs. Fixing the loopholes in disclosure laws, and public financing of elections are now more important than ever. Moreover, the legal walls of the airless room are paper-thin. Money isn’t speech at obscenely high levels. Protecting political equality is a compelling interest justifying limits on uncontrolled spending by the very rich. And preventing corruption means far more than stopping quid pro quo bribery. It means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here. The stakes are the preservation of democracy itself.

Burt Neuborne is the Inez Milholland Professor of Civil Liberties, NYU School of Law. This is his fiftieth year of practice, and fortieth year at NYU. He served as National Legal Director of the ACLU during the Reagan Presidency; Founding Legal Director of the Brennan Center since 1995; Special Counsel to the NOW Legal Defense and Education Fund, and was a member of the New York City Commission on Human Rights during the Koch administration.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.